It's Time To Re-Establish That If A Patent Blocks Progress, It's Unconstitutional

from the the-time-has-come dept

Andy Kessler has one of his typically insightful Wall Street Journal opinion pieces in which he says it's time for real patent reform (rather than the joke of patent reform we had last year). His main concern is the toll that patent trolling is taking on innovation. He goes through a number of different lawsuits and shakedowns -- many of which we've spoken about here -- before suggesting a few potential changes to the patent system which he thinks should be in any patent reform effort:

Time. Reform should start with the phrase "limited Times." For patents, it was originally 14 years, until 1861 when it was lengthened to 17 years, and then in 1995 it was extended again to 20 years with a five-year extension under limited circumstances. That may seem fine or even a little short for pharmaceuticals or gas turbines, but in technology things move a lot faster. Even AT&T won't make you keep a phone for more than two years. Apple is on its fifth iPhone iteration in less than five years.

"Times" ought to float by product and industry, perhaps with expirations based on the half-life of the product. PCs and telecom equipment have about a three-year half-life, pharmaceuticals more like 10. Someone needs to bring a clever case to the Supreme Court showing that 17 years, let alone 25, is an eternity and damaging for a fast-moving industry like tech.

This is a good suggestion (and we've seen similar suggestions, of course, when it comes to copyright, where the terms are an order of magnitude more insane). However, given the Supreme Court's rulings in Eldred and Golan, it seems unlikely that it gives a damn about if the laws actually damage industries. The Supreme Court has basically said that it's Congress' prerogative to do what it thinks is best, even if what it thinks is wrong.

Still, though, it is important to keep focus on the "limited times" clause in the Constitution, because it really is key, even if the Supreme Court horribly misinterpreted it. Highlighting, repeatedly, how excessively long IP monopolies hinder progress is important, because eventually the message has to get through.

Value. We have to stop allowing juries to establish the value of patents. In just the iPad alone, I would estimate there are 50,000 to 100,000 patents covering the chips, display, storage, communications and other features. They can't all be worth $6 per patent per device. Money isn't mentioned in Clause 8, but the market rather than juries can determine value.

This is a problem. When you look at how much patent holders often demand, where they rarely take into account just how many other patents impact a product, it becomes impossibly expensive to do anything when you let juries come up with crazy rulings that have no basis in reality. But it happens all the time. It's why there's so much money flowing into patent disputes these days, and why the lawyers love it.

Exclusivity. It's time to require patent holders to actually make or sell products before citing infringement. Lots of people have good ideas. Patent reform has to define what are exclusive rights for "Discoveries." As if you "discover" an algorithm or gene splicing rather than pull a year of all-nighters perfecting your invention. The idea is just a start. The rest is the sweat of execution. Facebook's Mark Zuckerberg had the right idea, telling his accusers in a deposition (perhaps the only true dialogue in the fictionalized movie "The Social Network") that "You know, you really don't need a forensics team to get to the bottom of this. If you guys were the inventors of Facebook, you'd have invented Facebook." That's the most sane logic against patent trolls.

This is a popular suggestion that we hear pretty frequently. And Kessler is right that the idea is just the start (and often, the idea has little to do with the final product). That said, I'm not as convinced of this one -- with perhaps a caveat. If we assume that there is a way to create a reasonable patent system, then you could see situations where this doesn't make sense: for example, if you have a university that patents something. It's not in the business of making things, so it just wants to license. That seems reasonable (again, assuming you could first solve other problems with the system).

So I'd propose a modified version of this, which Kessler also hints at later in the column: you can only sue over the patent if you're making or selling a product or if you've partnered with someone who is making or selling a product. That is, the patent holder has to be associated with actually bringing the product to market, even if it's through a third party. But if no such product is being made, then you have no ability to use the patent to sue those who actually are doing something.

Progress. Sane logic, however, rarely wins. Patent holders and even patent trolls have constitutional rights for their ideas. But the legal filter has always been "limited Times" or "exclusive Rights." Remember that the constitutional clause opens with "to promote the Progress of Science." Everything else follows.

Progress should take precedence over legal maneuvers and runaway jury awards. This is what James Madison must have meant. A smartphone is made up of thousands of interlocking pieces of hardware and software. Any number of them may violate a competitor's or troll's patents. Every time one of these is omitted, or worse, causes the final price of the end product to rise beyond its true economic value, the "Progress of Science" is seriously impeded. And progress is what creates jobs and increases our standard of living.

To some extent, this is related again to the first item. Actually paying attention to the part in the Constitution where it says that Congress is only able to pass such laws if they "promote the progress" seems important. If you're going to allow a patent system to exist, then why shouldn't it at least be a plausible argument in a patent dispute that allowing certain products is consistent with the "progress" argument?

Kessler then makes the key point, about just how ridiculously wasteful all this activity around patents has been lately:

Clearly we'd be better off having Microsoft, Apple and Google spending $1 billion on developing new products rather than buying up patents as an insurance policy so they and their partners can battle trolls and keep selling phones. How enlightening if we could see government actually promote progress as the Founders envisioned.

This is the key point that some people have significant trouble comprehending. Spending can go towards activity that expands the pie -- innovation, R&D, etc. -- or it can go to activity that does not expand the pie -- licensing, lawsuits, etc. This is an economic issue. Shouldn't we want more money going into non-zero sum games than zero-sum games? Yet the way the patent system is set up today, we get the opposite.

Of course, there's one other big reform that I think the patent system absolutely needs: an independent inventor defense. If someone creates something through their own smarts and intelligence, it's downright insulting to then tell them they can't actually do anything with that idea that they came up with themselves. For all the talk of the rights of individual inventors, it amazes me that patent system supporters aren't up in arms on this issue as well. Giving a patent only to whoever registered first is the most anti-inventor/anti-innovator concept around. Let people make use of their own ideas.

Reader Comments

His main concern is the toll that patent trolling is taking on innovation.

You use toll figuratively but it is literal. The entire economy passes through these toll gates every day. Why do all the people who hate taxes suddenly love tolls just because they are going to private industry?

I think you're framing two issues incorrectly. The first is the issue of promoting the progress. The system that Congress set up, taken as a whole, must promote the progress. It's incorrect to look at any one patent and claim the progress isn't being promoted. Does the entire patent system promote the progress? That's the question, and the answer is obviously yes. You focus on whether the progress is being promoted as much as it possibly could be. The Constitution does not require maximization.

The second issue is that you're doing the same thing with patents that you're doing with copyrights. The public benefit from patents comes in part at the beginning, like when the patent is published and the ideas therein disclosed. But what you fail to recognize that while a device is under patent, the owner has exclusive rights. The owner can choose what to do with it, how much to license it for, etc. You're looking at it like the benefit to the public comes all at once, right up front. But that's not the Constitutional bargain.

When you complain that a device under patent isn't promoting the progress as much as possible, you are forgetting that the owner can do with that property as he pleases. He is not bound to maximize the promotion the progress. Don't forget that some of the public benefit doesn't come until the patent expires and falls into the public domain. Whining that the public isn't getting that benefit up front gets gets it backwards and misrepresents the fact that the system is supposed to work like this. If you believe in the incentive theory of patents, and I believe you do, then you should know this.

Re:eyeroll:

The idea behind a patent is, after it expires, it can be used by anybody to build the 'whatnot' detailed within.

Modern patents are, on this scale, utterly rubbish. Go ahead, grab any patent granted in the last 20 years and see if you could build the 'whatever' that is detailed in the patent.

I'll bet you my next paycheck the answer is 'no'.

Of course, I'd be happy to be proven wrong--please do!--but this is a really safe bet. All of the patents granted lately are completely useless to anybody except lawyers & patent trolls. They're not instructional anymore, they're just obfuscational.

Re: Re:eyeroll:

I'm not sure how you're inability to understand a patent proves anything. My point is simple. Mike is arguing that if a single patent, looked at individually, does not promote the progress, then the patent system is unconstitutional. That's a ridiculous argument that doesn't even pass the laugh test. It misapprehends the patent system. To determine whether the progress is being promoted, you look at the whole patent system, not one individual patent. If Mike is going to be making legal arguments, then he should try to apply the actual law.

Re: Re: Re:eyeroll:

Mike is trying to go even further than that, he's trying to apply rationality and sense. I can see how that could be confusing the issue.

Fundamentally the proposition that patents promote progress has not been supported, the evidence in patent after patent is that at its very best it only hinders it a little, it normally hinders it a lot and at its worst it stops progress, not to mention business dead for x period of time, this has been the case even back to Watt's patent on the steam engine and it is showing more clearly than ever now.

Re: Re: Re: Re:eyeroll:

Don't believe everything you read coming from the pens of the anti-patent crowd. Their historical proclamations are revisionist, and their understanding of technology ranks, on a scale of 1 - 10 (with 1 being the lowest) somewhere between less than 1.

Re: Re: Re: Re: Re:eyeroll:

While I normally wouldn't uncritically accept the word of an anonymous commentator, on this single occason you seem so certain of your analysis that I think you do yourself a disservice by neglecting to cite the references you so clearly have. Please spend the extra few minutes to detail where you get this information from. I'm sure that once I've taken a decent look at your source material, I'll happily join the ranks of the anti-anti-patent (pro-patent?) crowd. Just show me the evidence, problem solved.

Re: Re: Re:eyeroll:

Mike is arguing that if a single patent, looked at individually, does not promote the progress, then the patent system is unconstitutional. That's a ridiculous argument...

It's also an argument that was never made. You may want to read the article again, extra carefully this time. What was argued was that in certain instances allowing the product to be made (and perhaps without having to pay the patent holder) should be something that can be considered as promoting the progress as well.

From the article:

To some extent, this is related again to the first item. Actually paying attention to the part in the Constitution where it says that Congress is only able to pass such laws if they "promote the progress" seems important. If you're going to allow a patent system to exist, then why shouldn't it at least be a plausible argument in a patent dispute that allowing certain products is consistent with the "progress" argument?

Re: Re: Re: Re:eyeroll:

"What was argued was that in certain instances allowing the product to be made (and perhaps without having to pay the patent holder) should be something that can be considered as promoting the progress as well."

Yes, but we generally don't make laws by catering to the exceptions. It would be incredibly silly to blow off the patent system because there are exceptional cases where it isn't the best solution.

I really think this post shows Mike for what he really is, myopic. He is looking so narrowly at exceptional cases, and is willing to damn the entire system because of them. It might play well in the anti-everything populist movement online, but it seems pretty silly once you step back and look around.

Press Release: Pharmaceutical companies continue to claim that high research and development (R&D) costs make it necessary for them to charge high prices and retain long ownership of patents to recoup costs. But a new study (subscription required) co-authored by health economists Rebecca Warburton and Donald W. Light demonstrates that high R&D estimates have been constructed by industry-supported economists to support the companies’ claims.

The widely accepted figure promoted by industry-supported economists is $1.3 billion to discover and develop a new drug. This estimate, however, was done on a costly subsample and then generalized to all drugs, inflating the estimate for the average new drug by about 7 fold.

And this too:

Yet the tests go on. Why? The sad truth is that the upward spiral of drug development costs in recent years in intimately tied to the drug industry's desperation to replace blockbuster drugs coming off patent with comparable drugs that may provide another 20 years of market exclusivity (and thus marketability), but not much else.

This trend, noted in the GAO report, led the auditors to conclude that the nation's patent laws were one of areas in need of reform if industry was going to refocus its attention on medically significant products. A series of laws and court rulings have given manufacturers the right to obtain new patents for minor changes in chemical structure, changes in routes of administration, and new uses for old products. These patent extenders provide substantial financial rewards to firms that focus their research attention on extending the marketability of their existing products instead of focusing on the truly new and innovative - always an inherently risky proposition.

I like how you deliberately try and exclude the "patent thicket crap". Why is that not an example? A variety of firms who have bought up large amounts of patents that don't represent any significant advances (in many cases covering already available functionality) suing each other purely to limit competitors. But for some arbitrary reasoning, that doesn't count apparently.

Re: Re: Re: Re:eyeroll:

"Maybe I read it wrong but I saw "If the patent does not promote the progress, then it should be invalidated""

Define "not promoting the progress". How long do you measure? If the patent was issued, it was considered new enough and unique enough to merit it. So how long after a patent do you start to measure progress? How long should you measure for? What is the absolute way to measure "progress"?

Re: Re: Re:eyeroll:

> I'm not sure how you're inability to understand a patent proves anything.

You've got it BACKWARDS.

It's his ABILITY to understand the patents that drives his skepticism. He realizes what crap they are and that they never should have been granted.

You're the one substituting a lack of understanding with an implicit assumption that a patent is worthy.

Patents stifle innovation. There's no getting around that. The real question is whether or not any particular patent is worthy of that and whether or not the patent itself represents ANY improvement to the state of the art.

Re:

A good way to measure whether the patent system is promoting the progress is to measure how many people use published patents to solve a problem vs coming up with their own solution. My company forbids looking at patents so that they never have to worry about treble damages. Considering that patents are partly meant to make inventions public rather than being kept secret, then the patent system clearly fails in that regard.

Also, keep in mind that the default scenario is being able to use any knowledge or copy anything you see. Copyrights and patents do not grant rights to you, they take rights away from everyone else. The founders thought this could be a good tradeoff in order to promote progress, but if any given patent hinders progress then patent law is unnecessarily abrogating everyone else's rights. In that scenario, there is no beneficial tradeoff. This should absolutely be held as unconstitutional.

Re: Re:

The argument isn't being framed properly. While a device is under patent, there is no requirement that it be promoting the progress at that time. Mike ignores the fact that a device under patent doesn't have to be licensed or sold by the patentee. The patentee has to disclose the device to get the patent, but then he can sit on his patent rights and not share--he can choose to not promote the progress by letting others practice the device while he holds the exclusive rights. That is his right granted by patent. That's how the system is set up. To say that this is unconstitutional is silly since that's what the Constitution says to do.

You are incorrect to state that your rights are being taken away. You're right that in the absence of legislation providing otherwise, you would have a right to copy. But with a patent, the right originates with the inventor (as the Constitution says it should be). It's not that the right is taken from you and given to the inventor. The right is created by and initiated in the inventor. You don't have a right to the patented device until the inventor's rights disappear when the device enters the public domain. Nothing was taken from you, and because the system works as its designed to, everyone gets the device once it enters the public domain. Again, it makes little sense to complain that all the benefits aren't accruing to the public at the get-go since that's not how it's supposed to work. Mike is simply mis-framing the issue.

Re: Re: Re:

"That is his right granted by patent. That's how the system is set up. To say that this is unconstitutional is silly since that's what the Constitution says to do." "But with a patent, the right originates with the inventor (as the Constitution says it should be)."

Actually, it doesn't. It says that Congress -may- grant rights of exclusivity in order to promote progress: "The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The Constitution does -not- say that those rights are inherent to the inventor, nor require that Congress make laws providing or enforcing those granted rights. It is only granting Congress the Constitutional right to make any laws, including no laws, granting such rights IF it promotes progress. And if it doesn't promote progress, then it is unconstitutional.

Re: Re: Re: Re:

That link is the folly of Techdirt (see my other post in this thread). The "progress" aspect in the constitution doesn't say "right now" or "this week". Progress is something that can also happen over time. When driving a car, sometimes we hit red lights, stop signs, and such. They may hinder progress for the moment, but in the long run, they help with the flow of traffic.

Patents allow companies to arrive at a solution, get the exclusive rights to it, and move forward to bring it to market, offer it up to others, or license as they see fit. At the end of the patent period, they lose it all, and that is the end - and we as a people are left with all of the progress that occured.

Mike is just myopically looking at a short period of time, at a minor slow down in the headlong progress he expects. The framers didn't put anything in about instant gratification. Perhaps it is the nature of the internet, it makes people like Mike impatient, they want it all now with no restrictions, no matter how much it costs everyone else.

Re: Re: Re: Re: Re:

You said it. "They may hinder progress for the moment, but in the long run, they help with the flow of traffic." Hinder progress. Let's all say it together "HINDER PROGRESS"! Kind of goes against "promote progress", doesn't it. Doesn't matter how long. If you're granted a patent and you hinder progress, then by the declaration of the constitution, you should not have the patent. It's not cars on the road, it's evolution of human understanding. When a system hinders that, it's not in the best interest of any country.

Re: Re: Re: Re: Re: Re:

Vmax, please read the full sentence:

They may hinder progress for the moment, but in the long run, they help with the flow of traffic

The "promote progress" part of the constitution doesn't say "promote progress at all times in all ways without exception". It is an overall goal. Micromeasurement isn't exactly the terms used, is it? The goal is over time, not over seconds.

Re: Re: Re: Re: Re:

What is truly sad is that you completely misunderstand just have fast technology is advancing. If you patent a discover and then just sit on it, then the market will move completely past you, making your patent worthless years before it expires. How does that promote anything at all? I won't wait for an answer the the rather direct question.

Re: Re: Re: Re: Re: Re:

Call me simplistic,but I'd argue that if the public is in any way harmed by the enforcement of copyright, then there's something wrong with how copyright is being enforced. I'm not interested in sophistic 'lesser evil' arguments. Enforce your copyright with the rights you currently have, or expect resistance.

Re: Re: Re: Re: Re: Re:

Call me simplistic,but I'd argue that if the public is in any way harmed by the enforcement of copyright, then there's something wrong with how copyright is being enforced. I'm not interested in sophistic 'lesser evil' arguments. Enforce your copyright with the rights you currently have, or expect resistance.

The half-life of a patent

The Tivo patents are a good case in point here. They might have been interesting in 1998 as a means to allow hardware of the day to better deal with the problem. However, tech quickly moved past the point where any non-obvious invention of there's would have been relevant.

Re: Re: Re: Re: Re:

Assuming you're right that Mike is being short sighted (or more likely you're focusing on the semantics of the argument a little too much), what would the harm be in changing current patent law to better prevent patent trolling? Shouldn't the goal of any law or regulation be to provide the best results with the minimum amount of harm? We aren't talking about abolishing the law (or at least Mike isn't). It's about preventing abuse of the system.

Re: Re: Re: Re: Re: Re:

Generally, Mike's arguments are to throw the baby out with the bath water. Addressing patent trolling (which Mike plays way to grandly) in the manner suggested would neuter much of the patent law, and take away many of the rights granted to patent holders.

Let's be clear here. Any time a company tries to enforce it's patents in a court of law, Mike feels they are being patent trolls. He uses it widely:

"Kessler then makes the key point, about just how ridiculously wasteful all this activity around patents has been lately:
Clearly we'd be better off having Microsoft, Apple and Google spending $1 billion on developing new products rather than buying up patents as an insurance policy so they and their partners can battle trolls and keep selling phones. How enlightening if we could see government actually promote progress as the Founders envisioned."

Yes, the quote is someone else's, but Mike is clearly agreeing with it. In order to achieve this desired result, you would have to remove pretty much all patent protection, or enforce a manditory, low cost licensing scheme, both of which would harm patent holders.

There is no middle ground. "Patent trolls" are like fleas. You don't kill your dog to get rid of fleas, why kill patents to get rid of a few trolls?

Re: Re: Re: Re: Re: Re: Re:

Depending on how many fleas there are and the condition of the dog, killing it might be considered a mercy.

But seriously, how would those suggestions 'neuter' patent law? And how would you change those suggestions to make them more reasonable? So far, you saying that Mike has no middle ground is like the pot calling the kettle black.

Re: Re: Re: Re: Re: Re: Re: Re:

Why? I think the system generally works like it should. We are facing a bit of a tough period right now because there are many patents issued in the past that, by current standards, are vague and general enough to cover much of what has come since. The solution for that is something like time travel, sending patent reviewers into the future to see the results. I see no other way.

Every time we hit new technology, we have first wide scope patents (because the whole idea is new) and then it narrows over time. Patent trolls live right now of the vaguest and widest of claims. As those expire, their business gets harder and harder to do (at least in regard to online stuff). Remember, in a very short time, much of what was patent at the "start" of the commercial internet will fall out of patent. Where is the issue?

You can find flaws in any system if you take out a microscpe and go looking. I am more of a big picture guy, looking at the overall thing - after all, promoting the progress isn't a 10 minute job.

Re: Re: Re:

The problem with your argument is that your always talking about devices that are already under patent. But patent laws are primarily about deciding whether a patent should be granted in the first place. And if, after consideration and debate, it's decided that many of the devices patented should not have received patents...well then they're no "devices under patent" either.

I think most people here believe that patents do have a place. They allow an inventor time to bring a product to market, and they allow inventors to gain investment in order to improve their product.

Bringing a product to market and improving devices in the market are both forms of progress that I'm sure fit within the constitutional definition.

Sitting on a patent and doing nothing except suing others for inventing the same thing is not a form of progress. The argument is that sitting on a patent and not using it productively is not progressive and therefore is invalidating the patent granted to it.

In sporting terms, we call that "use it or lose it".

What's wasting money is forcing the industry to spend money contesting patents that should not have been granted in the first place. And so, rather than progressing, the current situation is regressing. It's doing nothing to help with bonus points of throwing money away.

Re:

There's two parts to this. The first is that the USPTO, having now decided to pay bonus's for the inspectors granting the most patents rather than the most valid patents has ended up with a lock of dreck out there and it's the dreck the patent trolls end up using, for the most part. Then again the patent inspectors often have no expertise, much less familiarity, with a lot of the technology they're granting patents on as they hurry through it blissfully (??) unaware of things like prior art and obviousness hence one click patent.

Then there's the existence of trolls all by itself. Companies that have no intention, and never did, of bringing the invention to market. Merely to create an income flow from lawsuits. Whether or not that is shared with the inventor is unknown but I'd wager Microsoft's annual income that it isn't.

I don't know if Mike agrees with the incentive idea behind patents but I don't. Any more than I believe the incentive idea behind copyright. That it might provide an incentive is tangential to one of the major reasons it came about in the first place which was to reduce trade secrets and reveal what was in new inventions while providing exclusivity for a limited period of time. The growth of trade secrets was impeding the growth and spread of the Industrial Revolution in England in the early days and that, as much as anything, gave rise to patent laws. It was to end trade secrets and to share the information and details of the invention.
As for incentive, for the most part I don't think inventors need incentive when they begin work on what results in their invention they're trying to solve a problem or remove a roadblock that's in their way. Human's are a creative species so we'll create anyway, incentive or not. The ability to make money with what an inventor creates often comes much later once the invention is done.

Re: Re:

I don't know if Mike agrees with the incentive idea behind patents but I don't. . . . That it might provide an incentive is tangential to one of the major reasons it came about in the first place which was to reduce trade secrets and reveal what was in new inventions while providing exclusivity for a limited period of time.

Huh? That doesn't follow. The incentive to disclose the patent is the grant of exclusive rights to it if they do.

Re: Re: Re:

That I agree with. Though most AC's will say it's all about providing some sort of guaranteed income for the inventor(s). And that that is the true incentive. That's the viewpoint I responded to. And it does rear it's ugly head here far too often.

Re:

He never framed the issues like you said. Where did he focus on individual patents? It says it pretty clearly that it's the current implementation of the patent system as a whole that is hindering progress rather than promoting it.

Sure, patents are a trade-off, but all evidence points to the fact that the balance is clearly off, causing the system to stifle progress (yes, even in the long term). Also, nobody said the benefit to the public needs to be upfront, so that's just a silly straw man.

Re:

"Does the entire patent system promote the progress? That's the question, and the answer is obviously yes."

[citation needed]

You seem to be taking existence of the patent system as proof of its benefit. no cookie for you.

It would be nice if we could see even one example, in say the last 50 years, of the written contents of an actual expired patent being used to help someone innovate / invent beyond / on top of that patent.

Re: Re:

Well, look at it this way: The countries with the strongest IP and patent laws are, remarkably, some of the most wealthy in the world. The ones with the weakest systems (Hi India, China) have some very low per capita incomes.

Re: Re: Re: Re:

"And ironically, the countries with the strongest IP laws are experiencing the slowest growth or recessions, while those with the weakest systems have been showing strong and steady growth."

Ahh, the prefect misdirection! Those showing the most growth are those who are the furthest behind. If you were making $1 last year, and now you make $2, you have 100% growth! WOW! You are the envy of the US.

You need to look at Japan to see what happens - they go from FAR behind, ignoring IP and ripping people off left and right, and then finally upon reaching a certainly level they reverse on it and get nasty about protecting IP - because they finally have some.

Same thing currently going on in China.

Growth is an interesting number, but actual productivity per worker and so on is way more interesting.

Re: Re: Re: Re: Re:

"Ahh, the prefect misdirection! Those showing the most growth are those who are the furthest behind. If you were making $1 last year, and now you make $2, you have 100% growth! WOW! You are the envy of the US."

Easy to say... Until you take into consideration that China is the second biggest economy right now. Its not a case of a small economy growing drastically, but of a large economy starting to catch up and outpace similarly large economies.

Also I'm interested in what you think about the link Lawerence replied with to your post. It seems to be -very- well researched. And it makes a very good point early in the chapter he mentions, chapter nine, in regards to medicine specifically and patents:

"(I)f patents were a necessary requirement for pharmaceutical innovation as claimed by their supporters, the large historical and cross country variations in the patent protection of medical products should have had a dramatic impact on national pharmaceutical industries. In particular, at least between 1850 and 1980, most drugs and medical products should have been invented and produced in the United States and the United Kingdom, and very little if anything in continental Europe. Further, countries such as Italy, Switzerland and, to a lesser extent, Germany, should have been the laggards of the pharmaceutical industry until recently. Instead the opposite was true for longer than a century."

Re:

> You focus on whether the progress is being promoted as much as it possibly could be. The Constitution does not require maximization.

Good quibble, but hardly a sensible argument.

Imagine: the law requires building engineering to be safe. And then it becomes apparent that many large important buildings are unsafe. But that is perfectly OK, say you, because the law 'does not require maximization'!

Then what the heck is the law for? You seem almost to be wanting to make a virtue of a failing.

Re:

> Does the entire patent system promote the progress? That's the question, and the answer is obviously yes.

You do not know how the costs and benefits add up, so, no, you do not know whether there is an overall gain.

The patent system imposes economic costs -- negatives. (*That* is something that *is* actually obvious -- consider any examples such as those implied above.) The patent system also, it is proposed, yields economic benefits too.

Whether there is an overall positive rather than negative depends on whether the gain outweighs the cost. And that depends on the extent of the various adjustable parameters of the law.

So, if it were obvious, you would now have no trouble in demonstrating that the current precise amount of 20 years is correct, as opposed to 10, 100, or 1. Please go ahead . . .

Re:

Does the entire patent system promote the progress? That's the question, and the answer is obviously yes.

I am far from anti-patent, and I believe that patents in concept (and how they used to be in practice) promote progress. However, with the system as it is today, I think that it's nowhere near obvious that the answer is "yes". I'm not saying it's "no," but that it's very unclear.

Re:

"Does the entire patent system promote the progress? That's the question, and the answer is obviously yes. You focus on whether the progress is being promoted as much as it possibly could be."

Arguing that it's ok that it promotes progress on net, even if not as much as the alternative presented or as much as it could be, and that is enough certainly doesn't pass the 'laugh test.'

"You're looking at it like the benefit to the public comes all at once, right up front. But that's not the Constitutional bargain."

The constitutional bargain absolutely is public benefit at all times as the public benefit is the only reason copyrights and patents are even in the constitution. It doesn't read 'to promote the progress of the arts, after securing...' it reads 'To promote the Progress of Science and useful Arts, by securing...' The constitutional bargain absolutely requires that the method of the securing benefit the public immediately as well as later and does not put off the public benefit at all.

17 years to 20 years

The change from 17 years to 20 years in 1995 is actually good news when it comes to limiting the patent term.

The new term is measured from the date a patent application is filed, whereas the old term was measured from the date the resulting patent issued. Since it usually takes about three years to get a patent (from application to issue), the term did not really change.

BUT, the old term calculation could be abused by delaying the issue date for the patent, thus effectively extending the patent term. Therefore, the new term calculation has removed this potential for abuse.

One way would shorten the patent term would be to increase fees for maintenance to keep the patent alive.

Re: 17 years to 20 years

Another thing to keep in mind that most patents last less than 10 years because people don't renew them. Everybody complains about the 20 years thing, but really the data show that it's usually half that long.

making or selling a product

Article suggested: "you can only sue over the patent if you're making or selling a product or if you've partnered with someone who is making or selling a product."

I think this is a bad idea because it would favor large corporations with manufacturing facilities over small innovators in their garages struggling to be noticed. We need to protect the ideas of the small innovators. The big guys would simply ignore those small businesses and individuals, not partner with them.

Re: making or selling a product

I was curious about how long that line of argument would take to appear.

While there are independents out there I have to say that the logic of an inventor developing and patenting something without at least trying to build and sell the result of all that work. It strikes me that an inventor is trying to solve or fix a problem and doing nothing with the solution doesn't make a world of sense to me.

Put another way, I don't buy your doomsday argument for non-practicing entities (patent trolls) existing for that purpose or that they do exist for that purpose.

Certainly in the realm of software patents the patents we see these days are written mostly to mean just about anything the holder wants them to mean.

Regarding the time for which patents should be considered to be valid, I'm not sure I like the idea of "floating" them by industry. One thing we're seeing over and over again is companies getting sued for patents that come from outside their industry, insofar as this is possible to measure. Hell, a huge proportion of patent infringement suits are brought by companies that don't even make a product.

Personally, I'd prefer to see patent expiration based on a use-it-or-lose-it approach; in other words, the patent holder would have their monopoly for 20 years, or until they stop selling products that use the patent. This would cut down on a huge number of bogus lawsuits, and encourage companies to innovate at the same time.

First, the USSC has held, and indeed it does seem to be true, that the constitutional clause is only permissive. That is, it permits your congress to decide the fashion which they wish to implement to try to promote the useful arts. Currently, and historically, they have chosen the method that you see before you: the current patent system. It does not have to be so, but congress chooses to do it this way.

That is, when you take issue with a patent supposedly blocking innovation, it is irrelevant, because the constitutional clause is only talking to congress and which kinds of laws they are allowed to implement. If their laws fail to do what they are trying to do, it does not make their laws unconstitutional. And no individual patent is of course "unconstitutional" if it "hinders" progress because that section in the constitution doesn't even mention the current patent system or any patents issuing under it.

That is, like you like to say, what people do not understand.

The other thing is that when you say "For all the talk of the rights of individual inventors, it amazes me that patent system supporters aren't up in arms on this issue as well." regarding an independent inventor clause you have to remember, the point of the patent system is to encourage DISCLOSURE. All else is irrelevant to it. And if they were to include an independent invention clause then it would totally demolish the small incentive that the patent system currently gives in exchange for the DISCLOSURE.

I know this is hard to wrap your mind around, but when you spend several years dealing with it you'll probably start to understand better. Or not, if you couldn't give a rat's behind about disclosure.

That is, when you take issue with a patent supposedly blocking innovation, it is irrelevant, because the constitutional clause is only talking to congress and which kinds of laws they are allowed to implement. If their laws fail to do what they are trying to do, it does not make their laws unconstitutional.

I disagree. If you read the end of the sentence containing the copyrights and patents clause, it mandates that any laws implementing exclusive rights must be both "necessary and proper". If having a patent regime is not necessary to promote the useful Arts then Congress is not empowered to enact it and the courts are obligated to rescind it.

The bar is not that patents might possibly promote the useful Arts -- or even that patents are an effective approach to promoting the useful Arts -- but that patents are "necessary". I.e., that should patents not exist then there'd be no promotion taking place.

Thank you for the enlightenment

A very fair point about the McCulloch case contradicting my more extreme interpretation of the Constitution. Thank you for directing me to that.

I do think there exists a sorites paradox when evaluating the benefits versus costs of government-granted monopolies; much worsened by the fact nobody in government bothers to even attempt such an evaluation. Over the decades, both copyrights and patents have seen continual, though arguably gradual, expansion and we are reaching -- or have reached -- a crisis where these two regimes can no longer be argued as being in the public interest.

We have no banannas

Ahh Mike, as always, you are quick with the damnation on the minutiae of the day, but you seem unwilling to stand back and look at the bigger picture.

The idea of patents is to "to promote the Progress of Science" - but nowhere in the constitution does it say "over the short run". That is your failing every time on this issue, that you want it NOW, and you are unwilling to accept progress over time.

Further, you seem unwilling to accept the role that patents play in encouraging research and development, and the investments in the sciences that go along with it. Instead, you are looking at "there is this patent we cannot reuse today!". It's a short sighted way of looking at things, and really just not very logical.

If something gets a patent for 20 years, but came into being 10 years sooner than it would have otherwise, are we not better off? Are we trading some time of a limited monopoly in order to get the results more quickly?

In the end, it just shows that you are incredibly short sighted, and seemingly more than a little greedy in wanting it all now, while not paying the price. Perhaps this is why you have a love of the world of piracy.

Re: Re:

Re: Re:

Perfect example: Viagra.

You can carry on now - it helps many men carry on indeed. Not only did it bring a sexual revolution to the baby boomers, it also encouraged and promoted other discoveries such as Cialis, as other companies attempting to achieve similar or better results from scientific research and product development.

Actually, the original concept was that patents are covered by the "useful Arts" part of the clause. The phrase "Progress of Science" refers to copyrights (the framers of the Constitution did not intend copyrights "entertainment", they were targetting map-making and scientific journals).

... but nowhere in the constitution does it say "over the short run". That is your failing every time on this issue, that you want it NOW, and you are unwilling to accept progress over time.

Where is the analysis (mandated by U.S. law) to determine if any term benefit accrues? Also, Article 1 of the Constitution does not merely require that promotion of the useful Arts takes place (whether long- or short-term); it requires that institution of a patent regime be a "necessary and proper" approach to achieving that benefit.

U.S. patent laws were enacted when there was a population of around 4 million citizens, most of them illiterate agrarians, and entire continent of resources awaiting exploitation. Exclusive patent rights may have been deemed "necessary" under such circumstances (mainly as a tool to recruit tradesman and artisans from the Old World). In the modern world, the situation is reversed; there is a scarcity of available resources and an billions of innovated ideas being conceived and shared by well-educated and technically-trained minds.

In today's world, if someone chooses not to share an idea on how many clicks it should take to purchase something online then no doubt there will be a few thousand other "innovators" to whom the solution will undoubtedly occur -- and it won't take them 20 years.

Just Say No

The problem with patents is that they're relatively easy to get and difficult to get rid of. It is this simple fact that allows them to grow and encroach on areas that the legislators could not envision when they created the laws. Resetting patent law back to what it should be will not stop this behaviour. It will just come back sooner or later (most likely sooner). The only way to stop patents from stifling innovation is to get rid of it completely. Patents: just say no.

They sell blog filler and "insights" to major corporations including MS, HP, IBM etc. who just happen to be some of the world’s most frequent patent suit defendants. Obviously, he has failed to report his conflicts as any reputable reporter would. But then Masnick and his monkeys are not reporters. They are patent system saboteurs receiving funding from huge corporate infringers. They cannot be trusted and have no credibility. All they know about patents is they don’t have any.

"Blocks Progress" sung to "A Material Girl"

Its very clear what's needed here is the application of a serious laxative. Masnick is so backed up it's pushed what little excuse he had for a brain out his ears and is now making a god-awful mess on the electronic page.

Well I guess those big tech firms got what they expected this time! Give us a B, give us a S and what do we get? An attack on whatever Masnick and his Crony Capitalists believe is "Progress" and whatever they want to define as "Blocks".

After all money talks and Masnick drops his draws to the sound of money every time.

time

I agree that it's time for a serious dialogue about implementing a multi-tiered patent system that allows different terms for different types of innovation. While a 20-year patent term is clearly ridiculous for software patents, it's only the beginning of recoupment on R&D for a pharma patent. The one-size-fits-all model no longer works!

another biased article

"A Patent Blocks Progress"

your definition: someone sues us for infringement

"patent reform"...“America Invents Act”

“This is not a patent reform bill” Senator Maria Cantwell (D-WA) complained, despite other democrats praising the overhaul. “This is a big corporation patent giveaway that tramples on the right of small inventors.”

Senator Cantwell is right. Just because they call it “reform” doesn’t mean it is. The agents of banks, huge multinationals, and China are at it again trying to brain wash and bankrupt America.

They should have called the bill the America STOPS Inventing Act or ASIA, because that’s where it is sending all our jobs.

The patent bill is nothing less than another monumental federal giveaway for banks, huge multinationals, and China and an off shoring job killing nightmare for America. Even the leading patent expert in China has stated the bill will help them steal our inventions. Who are the supporters of this bill working for??

Patent reform is a fraud on America. This bill will not do what they claim it will. What it will do is help large multinational corporations maintain their monopolies by robbing and destroying their small entity and startup competitors (so it will do exactly what the large multinationals paid for) and with them the jobs they would have created. The bill will make it harder and more expensive for small firms to get and enforce their patents. Without patents we cant get funded. In this way large firms are able to play king of the hill and keep their small competitors from reaching the top as they have. Yet small entities create the lion's share of new jobs. According to recent studies by the Kauffman Foundation and economists at the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” This bill is a wholesale destroyer of US jobs. Those wishing to help fight this bill should contact us as below.

Small entities and inventors have been given far too little voice on this bill when one considers that they rely far more heavily on the patent system than do large firms who can control their markets by their size alone. The smaller the firm, the more they rely on patents -especially startups and individual inventors. Congress tinkering with patent law while gagging inventors is like a surgeon operating before examining the patient.

Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.